Jasper v. City and County of Denver

• Decision Date: 29 August 1960
• Docket Number: No. 18943,18943
• Citation: Jasper v. City and County of Denver, 354 P.2d 1028, 144 Colo. 43 (Colo. 1960)
• Parties: Nellie JASPER, Plaintiff in Error, v. CITY AND COUNTY OF DENVER, a Municipal Corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 1028

354 P.2d 1028

144 Colo. 43

Nellie JASPER, Plaintiff in Error, v.CITY AND COUNTY OF DENVER, a Municipal CorporationDefendant in Error.

No. 18943.

Supreme Court of Colorado, In Department.

Aug. 29, 1960.

Fugate, May & Mitchem, Daniel S. Hoffman, William H. Prendergast, Denver, for plaintiff in error.

John C. Banks, City Atty., Ty R. Williams, Herman Atencio, Asst. City Attys., Denver, for defendant in error.

HALL, Justice.

The parties appear here in the same order as in the trial court.We refer to them as plaintiff and defendant.

Presented for review is the correctness of a judgment setting aside a jury verdict in favor of plaintiff and dismissing plaintiff's complaint.

The facts are undisputed.Plaintiff, age sixty-four, at about 7:30 o'clock A.M. on March 19, 1957, was proceeding west on the sidewalk on the north side of 18th Avenue; as she reached Grant Street, preparatory to crossing the same she looked to see if a bus was in sight, observed that the signal light was green.She then stepped off the curb and into the crosswalk where she fell and suffered injuries, for which she sought recovery and for which the jury by its verdict awarded her the sum of $5,061.

The evidence discloses negligence on the part of the city in that a hole extending about four feet in length, located in the crosswalk where the asphalt joins the concrete gutter at the east side of Grant Street, had remained unrepaired for several weeks.This hole was about six inches deep, about a foot wide, about eighteen inches from the curb and was partially filled with loose gravel, stones and concrete.It constituted a distinct hazard to pedestrians using the crosswalk and as such fell far short of being a reasonably safe way for pedestrians.

Plaintiff had used this crosswalk for a long period of time and several times during the two weeks prior to her fall, during which time the crosswalk was in the hazardous condition set forth above.

There were no witnesses to the events which preceded plaintiff's fall and injuries.Plaintiff's testimony as to just what happened leaves much to be desired.Her testimony was to the effect that she proceeded in her usual manner, at a normal gait; that she turned to see if a bus was coming, checked the light, stepped off the curb and fell.

'I just stepped off the curb and hit something, what it was I don't know, and went down; just like you would step to go across the intersection.'

After the fall plaintiff was 'sitting flat' in the crosswalk where the gutter joins the pavement and in the hole above described.

At the close of plaintiff's case and again at the close of all the testimony, the defendant moved for a directed verdict for reasons as follows: (1) There was no evidence showing the hole to be the proximate cause of the fall; (2) the evidence shows plaintiff to be guilty of contributory negligence as a matter of law.Both motions were denied and the case submitted to the jury on fifteen instructions, including one on contributory negligence, none of which were objected to by either party.

The jury found all issues in favor of the plaintiff and awarded damages as set out above.

In setting aside this verdict and dismissing plaintiff's complaint, the trial judge based his decision on the contention that plaintiff had not sustained the burden of proving the allegations of her complaint.He also stated that 'I am convinced also that there was contributory negligence.'He did not base his decision on contributory negligence.

We conclude that the case was properly submitted to the jury and that judgment should be entered on the verdict.

The evidence and reasonable inference to be drawn therefrom goes beyond proving a fall and injuries.It is not at all unusual that plaintiff could not testify as to whether she stepped in the hole, on the edge thereof, or on debris in or about the hole.The fact remains that the fall occurred at the place of the hazard while plaintiff was proceeding in a normal manner and at the place designated for crossing by pedestrians.

It was not necessary that plaintiff's testimony prove with absolute certainty that the existence of the hole caused the injury.The rule to be followed is well stated in Prosser on Torts (2d ed.) at page 222:

'The plaintiff is not, however, required to prove his case beyond a reasonable doubt.He need not negative entirely the possibility that the defendant's conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not.The fact of causation is incapable of mathematical proof, since no man can say with absolute certainly what would have occurred if the defendant had acted...